STEVEN F. TVARDEK, JR., ET AL.
POWHATAN VILLAGE HOMEOWNERS ASSOCIATION, INC
THE CIRCUIT COURT FOR THE CITY OF WILLIAMSBURG AND JAMES CITY
COUNTY. Michael E. McGinty, Judge.
J. Knicely (Knicely Law Firm, on briefs), for appellants.
Dorans (Wolcott Rivers Gates, on brief), for appellee.
Curiae: Virginia Property Rights Coalition (Stephen J.
Clarke; Joshua E. Baker; Waldo & Lyle, on brief), in
support of appellants.
Curiae: Williamsburg Area Association of Realtors, Inc. (S.M.
Franck; Andrew M. Franck; Geddy, Harris, Franck &
Hickman, on brief) in support of appellants.
PRESENT: All the Justices
ARTHUR KELSEY, JUSTICE.
circuit court in this case granted a special plea in bar
dismissing, on statute of limitations grounds, a declaratory
judgment action filed by Steven F. Tvardek and Marta P.
Tvardek against their homeowners' association. Because
the court erred in doing so, we reverse the dismissal order
and the circuit court's ancillary award of attorney fees
to the defendant.
2013, the Tvardeks filed a declaratory judgment complaint
against their homeowners' association, Powhatan Village
Homeowners Association, Inc. (the " HOA" ). They
challenged the validity of a 2008 amendment to the Powhatan
Village Declaration of Protective Covenants and Restrictions
(the " 2008 Amendment" ) on the basis that it
unlawfully deprived them of a preexisting right to rent their
home, which they purchased in 2006.
the Tvardeks filed an amended complaint amplifying their
claim, the HOA filed a special plea in bar asserting that the
case should be dismissed as untimely under the one-year
statute of limitations prescribed by Code § 55-515.1(E).
The Tvardeks responded with a motion for partial summary
judgment claiming that the statute of limitations was
inapplicable because the 2008 Amendment never became "
effective" under the Virginia Property Owners'
Association Act, Code § 55-509 et seq., and
specifically pursuant to Code § 55-515.1(F), which is a
prerequisite for the running of the one-year limitations
period in Code § 55-515.1(E). Without taking evidence,
the circuit court reviewed the pleadings, heard arguments of
counsel, and entered an order granting the special plea in
bar asserting the statute of limitations defense. The court
later entered an order granting " prevailing party"
attorney fees, in the amount of $12,237.50, to the HOA.
See Code § 55-515(A); J.A. at 219.
debate over the statute of limitations turned on a single
uncontested fact: the text of a certification attached to the
2008 Amendment, which was recorded in the land records of the
clerk of the circuit court. The certification stated:
CERTIFICATION REQUIRED BY VIRGINIA CODE §
The undersigned President of the Association does hereby
certify that this Amendment has been approved by a vote of
two-thirds of the Class A votes in the Association, as
evidenced by the results of the meeting at which the vote was
taken, such evidence on file with the Association, as
required by Section 9.2 of the Declaration.
EXECUTED on the date first written above by the duly
authorized officer of the Association.
POWHATAN VILLAGE HOMEOWNERS ASSOCIATION, INC.,
a Virginia Nonstock ...